PEOPLE v. COUSER (1998)

The Defendant, John Couser, is charged along with James Stanback, in seven counts of an 18 count Indictment with the crimes of conspiracy in the second degree in violation of § 105.15 of the Penal Law;  murder in the first degree in violation of §§ 125.27(1)(a)(vii) (one count) and 125.27(1)(a)(v) (one count) of the Penal Law;  murder in the second degree in violation of § 125.25(1) of the Penal Law;  attempted murder in the first degree in violation of §§ 110.00 and 125.27(1)(a)(v) of the Penal Law (2 counts) and attempted murder in the second degree in violation of §§ 110.00 and 125.25(1) of the Penal Law (2 counts), and is charged alone in one count with the crime of murder in the second degree in violation of § 125.25(1) of the Penal Law.   On October 6, 1997, the Defendant Stanback entered a plea of guilty to murder in the second degree as charged in Count Six in full satisfaction of the Indictment.

The Indictment arises out of the killing of Virginia Hackett and the shooting of John Paul Jones and Eugene Jones on February 23, 1997 at 131 1/2 Shonnard Street in the City of Syracuse by Stanback and one Quentin Jenkins who went to the Hackett residence with two others allegedly for the purpose of killing James Hackett.   It is alleged that the reason James Hackett was to be killed is because he was to testify against the Defendant Couser in a trial scheduled in Monroe County in which Couser was charged with attempting to kill James Hackett on a prior occasion.

The Defendant moves to dismiss all of the substantive counts he is charged with upon the claim that the evidence before the Grand Jury was insufficient to establish that he shared his co-conspirators' intent to kill Virginia Hackett or that he attempted to cause Eugene and John Paul Jones' deaths.   In support of this contention, the accused argues that the “command” which Couser allegedly gave to Stanback set forth in Count Two and the “order” alleged in Count Three to Stanback were limited to killing James Hackett and did not encompass the victims in the Indictment.

In addition, he contends that since he was not present at the scene of the shooting or did not participate in the decision to shoot the victims, he cannot be held liable for the crimes charged.

The most troublesome issue presented by these Counts is whether there is a sufficiently precise meaning concerning the term “command” in the statute.

§ 125.27(1)(a)(vii) provides:

“A person is guilty of murder in the first degree when:  1.   With the intent to cause the death of another person, he causes the death of such person or of a third person and (vii) the victim was killed while the defendant was in the course of committing or attempting to commit and in furtherance of robbery, burglary in the first degree or second degree, kidnapping in the first degree, arson in the first degree or second degree, rape in the first degree * * * sexual abuse in the first degree, aggravated sexual abuse in the first degree or escape in the first degree * * * or in the course of and furtherance of immediate flight after committing or attempting to commit the crime of murder in the second degree;  provided, however, the victim is not a participant in one of the aforementioned crimes and, provided further that, unless the defendant's criminal liability under this subparagraph is based upon the defendant having commanded another person to cause the death of the victim or intended victim pursuant to section 20.00 of this chapter, this subparagraph shall not apply where the defendant's criminal liability is based upon the conduct of another pursuant to section 20.00 of this chapter.”

In enacting this statute, the legislature sought to craft a felony murder provision like that set forth in § 125.25(3) of the Penal Law, albeit with a significantly expanded list of predicate felonies.   Moreover, while § 125.25(3)(a) of the Penal Law makes it an affirmative defense that the accused, “Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof”, this section only imposes accessorial liability for the crime where the People have proven as an element that the accused “․ commanded another person to cause the death of the victim or intended victim.”  (Penal Law § 125.27[1][a][vii] ).  Unfortunately, neither the legislature nor the courts have given any guidance about what constitutes a “command” under this statute.

 A statute which makes a defendant death eligible:

“․ [must contain] an aggravating circumstance [which] generally narrow[s] the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.”  (Zant v. Stephens, 462 U.S. 862 at 877, 103 S.Ct. 2733 at 2742, 77 L.Ed.2d 235).

In Gregg v. Georgia, 428 U.S. 153, 189, 96 S.Ct. 2909, 2932, 49 L.Ed.2d 859 (1976), the Court held:

“Where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.”

 While the section at issue initially appears to fulfill these requirements since it narrows the accomplice liability to a single concept, “command”, and places the burden of establishing it on the People, the failure to define what constitutes a “command” either under § 20.00 or § 125.27(1)(a)(vii) of the Penal Law renders the statute impermissibly vague.

The Defendant correctly points out that except in People v. Mateo, 175 Misc.2d 192, 664 N.Y.S.2d 981, the courts of New York have failed to provide any judicial construction to this term.   The legislative memoranda summarizing the provisions of § 125.27 of the Penal Law offered no illumination of what was contemplated in the choice of the term “command” borrowed from § 20.00 of the Penal Law.   This was readily apparent to the Practice Commentators who observed:

“․ but, what constitutes a command [under this section] is likely to engender significant litigation.” (Donnino, Practice Commentary, McKinney's Cons.Laws of N.Y., Book 39, Penal Law § 125.27, at 390.)

The arguments and counter-arguments proffered by the Defendant and the People about what might be contemplated by the use of this term only serve to underscore the vagueness of the term.

The People invite the Court to adopt the holding in People v. Mateo, supra, in which the court opined:

“The defendant also challenges the phrase ‘commanded another person’ as being unconstitutionally vague.   The defendant's argument is unpersuasive.   The term ‘command’ has been used in the Penal Law for many years under section 20.00.   This phrase, under Penal Law § 125.27(1)(a)(vii) limits the application of accessorial liability to those situations where an individual commands another person to intentionally cause the death of another individual.

Here the commonsense meaning of ‘command’ should be applied:  ‘To direct, with authority.   Power to dominate and control.’  (Black's Law Dictionary 267 [6th Ed.1990]).   The use of the phrase ‘commanded another person’ under the statute is sufficient to put the defendant on notice that it is a crime to order ․ the death․ This phrase also limits the type of conduct that can be charged under this statute by law enforcement personnel because of the limited application of accessorial liability.” (id., at p. 201, 664 N.Y.S.2d 981).

It is noteworthy that the People not only did not provide this definition of “command” to the Grand Jury, but that they provided the Grand Jury with no definition, apparently leaving it to them to apply their own individual notions of what that term meant.

The problem with the analysis in Mateo, supra, is that while Judge Connell correctly observes that the term has been included in § 20.00 of the Penal Law since 1965, and it limits the application of the type of accessorial liability which can be charged under this statute, it still begs the question of what constitutes a “command.”   Additionally, the utilization of the “common sense” meaning derived from Black's Law Dictionary 267 (6th Ed.) invites grand jurors and trial jurors throughout the state to apply their own personal subjective interpretation in determining the existence or non-existence of an aggravating factor in a capital ease ¹ .   While the Black's Law Dictionary definition may be useful in establishing agency principles in a civil case, more is required under a capital statute lest a jury be given the type of unbridled discretion condemned in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) and proscribed in Gregg, supra.

No better example of the problems posed exists than in the instant case.   The relationship established between Couser and Stanback before the Grand Jury is murky at best.   While Stanback appears to have acted at the behest of Couser, his motivation in doing so is a mystery.   No testimony was elicited explaining if Stanback acted out of fear, favor, friendship, for profit or otherwise.   While it is possible to say Couser solicited Stanback, it is impossible to say whether Stanback's actions were requested, importuned or commanded by Couser.   The proof before the Grand Jury is both legally and factually insufficient on this issue, and the evidence that Couser “commanded” Stanback absent a clear definition of “command” is speculative.

No person has been executed in New York since 1963.   In 1973, in People v. Fitzpatrick, 32 N.Y.2d 499, 346 N.Y.S.2d 793, 300 N.E.2d 139, the New York Court of Appeals, following Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346, abolished capital punishment in New York.   In 1974 (L.1974, ch. 367), the legislature passed a new Murder in the First Degree statute (Penal Law former § 125.27) in an attempt to satisfy the requirements of Furman, supra, which made the imposition of the death penalty mandatory in certain cases.   This statute was struck down by the Court of Appeals four years later in People v. Davis, 43 N.Y.2d 17, 400 N.Y.S.2d 735, 371 N.E.2d 456 (1978), based upon the Supreme Court holding in Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1975), and Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1975).   No successor capital statute was passed by the legislature until the instant enactment which became effective September 1, 1995.   There has, therefore, been an extended moratorium on capital litigation in New York and none of the several courts, trial level or appellate, have had the opportunity to pass upon the considerable developments of capital case law since the Supreme Court determined it to be constitutional in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859, except in the Davis, supra, case.   Because the common thread initially spun in Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1975), decided the same day as Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1975), that

“․ the Court acknowledged what cannot fairly be denied-that death is a punishment different from all other sanctions in kind rather than degree”  (428 U.S. 280 at 303-304, 96 S.Ct. 2978, Stewart, J.),

has been woven into an intricate web of capital case principles, the traditional test for determining the constitutionality of a penal statute here in New York, that

“First, the statute must provide sufficient notice of what conduct is prohibited;  second, the statute must not be written in such a manner as to permit or encourage arbitrary and discriminat[ing law] enforcement” (citations omitted)  (People v. Bright, 71 N.Y.2d 376 at 382, 526 N.Y.S.2d 66, 520 N.E.2d 1355),

is not a sufficient yardstick by which one can impose liability under a capital statute.   Culpability under a statute which makes a defendant death eligible must be measured in accordance with the principles of individualized sentencing enunciated by the United States Supreme Court in Gregg, supra, Woodson, supra, and their progeny so that arbitrary and capricious infliction of the penalty resulting from unchanneled discretion is avoided.

In declining to adopt the reasoning in Mateo, supra, this Court is mindful of Justice Stewart's words in Godfrey v. Georgia, 446 U.S. 420, 427-428, 100 S.Ct. 1759, 64 L.Ed.2d 398:

“A capital sentencing scheme must in short provide a ‘meaningful basis for distinguishing the few cases in which [the death penalty] is imposed from the many’ * * *

This means that if a State wishes to authorize capital punishment it has a constitutional responsibility to tailor and apply its law in a manner that avoids the arbitrary and capricious infliction of the death penalty.   Part of a State's responsibility in this regard is to define the crimes for which death may be the sentence in a way that obviates ‘standardless [sentencing] discretion’ * * * by ‘clear and objective standards' that provide ‘specific and detailed guidance,’ and that ‘make rationally reviewable the process for imposing a sentence of death.’ ”

In light of the foregoing, to the extent that this statute seeks to impose accessorial liability through the “command” term borrowed from § 20.00, this Court believes that the language of § 125.27(1)(a)(vii) runs afoul of the due process guarantees of both the Fourteenth Amendment to the Constitution of the United States, as well as Article I, Section 6, of the Constitution of the State of New York and Count Two is dismissed.

[Portions of opinion omitted for purposes of publication.]

DECISION/ORDER ON REARGUMENT

On February 26, 1998, this Court determined that Section 125.27(1)(a)(vii) of the Penal Law defining Murder in the First Degree was unconstitutional because it violated the due process guarantees of the Constitution of the United States and Article 1 Section 6 of the Constitution of the State of New York (176 Misc.2d 86, 674 N.Y.S.2d 887).  On March 2, 1998, at the People's request, the Court granted reargument so that the Attorney General could appear pursuant to Section 71 of the Executive Law. On April 3, 1998 the Attorney General filed a Memorandum of Law in support of his position that this section is not unconstitutional.   Oral argument was held in this Court on May 1, 1998.

The Attorney General contends that because:

“Section 125.27(1)(a)(vii) limits the application of the accessorial liability provisions of Section 20.00 to instances where the defendant commanded another person to cause the death of another person, and thus, the evidence that the defendant simply requested, solicited or importuned the conduct constituting this crime is [insufficient], even though by operation of Section 20.00 it might be sufficient with regard to most other crimes.   In narrowing the application of a statute which is punishable by the death penalty, the statute serves the constitutionally mandated purpose ‘of limiting the class of death eligible defendants.’ ”  (Citations omitted).

The Attorney General, citing Tuilaepa v. California, 512 U.S. 967, 973-74, 114 S.Ct. 2630, 129 L.Ed.2d 750 (1994), argues that there is a certain elasticity to the vagueness analysis, greater than that engaged in by the Court in its original Decision, quoting Justice Kennedy:

“Because ‘the proper degree definition’ of eligibility and selection factors often ‘is not susceptible of mathematical precision,’ our vagueness review is quite deferential.  Walton, supra, at 497 U.S. at 655, 110 S.Ct. at 3058;  see Gregg, supra, 428 U.S. at 193-94, 96 S.Ct. at 2935 (factors ‘are by necessity somewhat general’), relying on the basic principle that a factor is not unconstitutional if it has some ‘common-sense core of meaning ․ that criminal juries should be capable of understanding’ Jurek v. Texas, 428 U.S. 262, 279, 96 S.Ct. 2950, 2959, 49 L.Ed.2d 929 (1976) (White J. concurring in judgment), we have found only a few factors vague, and those in fact are quite similar to one another.   See Maynard, supra, 486 U.S. at 363-364, 108 S.Ct. at 1859 (question whether murder was ‘especially heinous, atrocious, or cruel’);  Godfrey, supra, 446 U.S. at 427-429, 100 S.Ct. at 1764-1765 (question whether murder was outrageously vile, horrible or inhuman);  cf. Arave, 507 U.S. at 472, 113 S.Ct. at 1541 (‘We are not faced with pejorative adjectives * * * that describe a crime as a whole.’).” (Attorney General's Memorandum of Law p. 5).

The Attorney General, however, appears to have overlooked additional language in the opinion, in particular:

“The aggravating circumstance may be contained in the definition of the crime or in a separate sentencing factor (or in both).  (Lowenfield [v. Phelps], supra, [484 U.S. 231] at 244-46 [108 S.Ct. 546, 98 L.Ed.2d 568 (1988)]).   As we have explained, the aggravating circumstance must meet two requirements.   First, [it] may not apply to every defendant convicted of a murder;  it must apply only to a subclass of defendants convicted of murder.   See Arave v. Creech, 507 U.S. 463, 474 [113 S.Ct. 1534, 123 L.Ed.2d 188] (1993) (‘If the sentencer fairly could conclude that an aggravating circumstance applies to every defendant eligible for the death penalty, the circumstance is constitutionally infirm’).   Second, the aggravating circumstance must not be unconstitutionally vague.  Godfrey v. Georgia, 446 U.S. 420, 428 [100 S.Ct. 1759, 64 L.Ed.2d 398] (1980);  see Arave, supra, at 471 [113 S.Ct. 1534] (court ‘ “must first determine whether the statutory language defining the circumstance is itself too vague to provide any guidance to the sentencer” ’) (quoting Walton v. Arizona, 497 U.S. 639, 654 [110 S.Ct. 3047, 111 L.Ed.2d 511] [1990] ).”  (512 U.S. 967 at 973, 114 S.Ct. 2630).

At first blush, the term “command” appears to satisfy the first requirement of the Supreme Court's test in Tuilaepa, supra, as it would appear to narrow the subclass of defendants convicted as accessories to only those determined to have “commanded” the killing pursuant to Section 20.00 of the Penal Law. (Section 125.27(1)(a)(vii) of the Penal Law).   However, as this Court observed in its opinion of February 26, 1998 if the Black's Law Dictionary definition were applied, all other terms contained in Section 20.00, which are synonymous with it, would also apply, thereby expanding the class to anyone charged as an accessory.  (176 Misc.2d, supra at 90, 674 N.Y.S.2d at 889.)   This, of course, runs afoul of the test set forth above in Tuilaepa, supra.

The term similarly does not meet the second requirement laid down in Justice Kennedy's opinion in that it is impermissibly vague because it does not have a definition as discussed in the court's previous Decision and Order.

The Attorney General additionally cites the Supreme Court holding in Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976) as authority for the proposition that the term “command” is not unconstitutionally vague.  (Attorney General's Memorandum of Law pp. 5-6).   In Jurek, supra, at 268, 96 S.Ct. 2950, the Supreme Court determined that an aggravating circumstance which involved a jury determination concerning whether a defendant “․ would commit criminal acts of violence that would constitute a continuing threat to society” was not unconstitutionally vague.   In Jurek, supra, Justice Stewart observed:

“It is, of course, not easy to predict future behavior.   The fact that such a determination is difficult, however, does not mean that it cannot be made.   Indeed, prediction of future criminal conduct is an essential element in many of the decisions rendered throughout our criminal justice system.   The decision whether to admit a defendant to bail, for instance, must often turn on a judge's prediction of the defendant's future conduct.   And any sentencing authority must predict a convicted person's probable future conduct when it engages in the process of determining what punishment to impose.   For those sentenced to prison, these same predictions must be made by parole authorities.   The task that a Texas jury must perform in answering the statutory question in issue is thus basically no different from the task performed countless times each day throughout the American system of criminal justice.   What is essential is that the jury have before it all possible relevant information about the individual defendant whose fate it must determine.   Texas law clearly assures that all such evidence will be adduced.”  (Jurek, supra, at p. 275-276, 96 S.Ct. 2950). (emphasis added)

Moreover, Justice Stewart pointed out that Texas law contained clear and explicit criteria for the jury to make this determination noting:

“ ‘In determining the likelihood that the defendant would be a continuing threat to society, the jury could consider whether the defendant had a significant criminal record.   It could consider the range and severity of his prior criminal conduct.   It could further look to the age of the defendant and whether or not the at the time of the commission of the offense he was acting under duress or under the domination of another.   It could also consider whether the defendant was under an extreme form of mental or emotional pressure, something less, perhaps, than insanity, but more than the emotions of the average man, however inflamed, could withstand.’  522 S.W.2d [934], at 939-940 [(1975)].”  (428 U.S. 262 at 272-273, 96 S.Ct. 2950).

As has been previously discussed, the statute under consideration in the instant case contains no definition and the Attorney General has not proposed or supplied one here.

The Attorney General further asserts that the language from United States v. Charnay, 537 F.2d 341, 356-357 (9th Cir.1976) is an appropriate standard for determining that the undefined term “command” is not necessarily void for vagueness.   There the Ninth circuit held:

“In this case, we are untroubled by the fact that never before has the section and rule been applied to a similar situation.   Furthermore, in fixing criminal liability under section 10(b) and Rule 10-b(5), we attach reduced importance to assertions of vagueness.   The fact that men of common intelligence-or lawyers and judges for that matter-‘must necessarily guess at its meaning and differ as to its application,’ does not require that we declare this section 10(b) void for vagueness.”  (Citations omitted).1

While the Ninth Circuit, misconstruing the Supreme Court's standard for vagueness, apparently was troubled by the lack of any precedent for application of a rule in a securities case, it is well settled that more is required in applying a capital statute.   In Godfrey v. Georgia, 446 U.S. 420, 428, 100 S.Ct. 1759, 64 L.Ed.2d 398, Justice Stewart wrote:

“․ if a State wishes to authorize capital punishment it has a constitutional responsibility to tailor and apply its law in a manner that avoids the arbitrary and capricious infliction of the death penalty.   Part of a State's responsibility in this regard is to define the crimes for which death may be the sentence in a way that obviates ‘standard-less [sentencing] discretion.’  Gregg v. Georgia, supra at 196, n. 47, 96 S.Ct. 2909.   See also Proffitt v. Florida, 28 U.S. 242, 96 S.Ct. 2690, 49 L.Ed.2d 913, Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929.”  446 U.S. 420 at 428, 100 S.Ct. 1759, 64 L.Ed.2d 398 (emphasis added).

At oral argument of the motion to reconsider the Court's previous determination, the Attorney General contended that the Court, in conducting this analysis, was applying a standard of “heightened Due Process,” which all other courts in this state have rejected.   At the outset, the Court would note that the accused has neither sought nor has the Court agreed to apply a “heightened Due Process” standard to its review of the various applications made in this case.   As was noted in the Court's prior opinion, New York has no body of case law construing death eligible statutes for at least two decades.   That being the case, the Court has little choice but to apply the principles enunciated by the Supreme Court of the United States in Gregg, supra, and its progeny in such an analysis.

Both the Attorney General and the People, at oral argument, maintained because the Court in its previous decision found the relationship between Couser and Stanback to be “murky at best” (176 Misc.2d 90, 674 N.Y.S.2d at 889), the decision concerning the sufficiency of the Grand Jury presentment was a factual determination which did not require the Court to reach the issue of the constitutionality of the statute.   While the testimony concerning the relationship between Couser and Stanback is indeed murky, it is the additional fact that the term “command” lacks any definition that precludes a finding that there was ample proof to impose liability under this particular section of the statute.

Finally, it is readily apparent that the Attorney General misconceives this Court's determination when he contends that:

“․ while the Court suggests the term ‘command’ is undefinable, it apparently has no problem understanding its meaning or distinguishing it from other forms of conduct covered by section 20.00.”  (Attorney General's Memorandum p. 6).

This Court has not said that the term “command” is “undefinable,” only that it is undefined.   The People at oral argument suggest that it is appropriate for the courts to “interpret” this term and join in the Attorney General's argument that no greater definition need be provided in the statute.²  This Court, however, believes that it is one thing to “interpret” and another to “define.”   In this regard it is not for this Court or any court to give it a definition, it is the legislature's function to provide that meaning.

For all of the foregoing reasons, the Court adheres to its prior determination.

FOOTNOTES

1.   A review of the definitions of the other terms contained in § 20.00 of the Penal Law contained in Black's Law Dictionary further illuminates the somewhat synonymous, if not circular, meaning these terms have-e.g.:Request-“To ask for something or for permission or authority to do, see, hear, etc., something;  to solicit.”  (Id., at 1304.)Importunity-“Pressing solicitation;  urgent request.”  (Id., at 755.)Solicit-“As used in the context of solicitation to commit a crime, term means to command, authorize, urge, incite, request, or advise another to commit a crime.”  (Id., at 1392.)Thus, if Black's Law Dictionary is to be the source of the definition of “command”, it would render nugatory the legislature's attempt to impose a single theory of liability pursuant to § 20.00 of the Penal Law;  all terms contained in that section would by definition be interchangeable.

1.   This language is taken from Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322 (1926), which actually held that “․ a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.  International Harvester Co. v. Kentucky, 234 U.S. 216, 221, 34 S.Ct. 853, 58 L.Ed. 1284;  Collins v. Kentucky, 234 U.S. 634, 638, 34 S.Ct. 924, 58 L.Ed. 1510.”

2.   The Attorney General suggested at oral argument that if the term “command” in Section 125.27(1)(a)(vii) of the Penal Law required greater definition than that which is concededly not provided in Section 20.00 of the Penal Law, then each and every term in that statute would require definition also.   While such a precise statute might be desirable, particularly where those subject to it are death eligible, the Attorney General has vastly overstated the problem.   All agree that the term “command” is an aggravating factor, the existence which if proven could subject the accused to the death penalty.   It thus becomes a critical element of the statute in a jury's determination in both the guilt and penalty phases.   Since the ultimate penalty could be exacted depending upon the existence or non-existence of this circumstance, the Court believes that a precise definition is required.

JOSEPH E. FAHEY, Judge.